Contents

Generally, obstruction charges are laid when it is discovered that a person questioned in an investigation, other than a suspect, has lied to the investigating officers. However, in most common law jurisdictions, the right to remain silent used to allow any person questioned by police merely to deny answering questions posed by an investigator without giving any reason for doing so. (In such a case, the investigators may subpoena the witness to give testimony under oath in court, though the witness may then exercise their rights, for example in the Fifth Amendment, if they believe their answer may serve to incriminate themselves.) If the person willfully and knowingly tried to protect a suspect (such as by providing a false alibi) or to hide from investigation of their own activities (such as to hide their involvement in another crime), this may leave them liable to prosecution. Obstruction charges can also be laid if a person alters, destroys, or conceals physical evidence,[1] Obstruction charges may also be laid in unique situations such as refusal to aid a police officer, escape through voluntary action of an officer and refusing to assist prison officers in arresting escaped convicts.

President Richard Nixon was investigated for obstruction of justice for his alleged role in the cover-up of the break-in at the Watergate hotel during his 1972 re-election campaign. Although it is unknown whether Nixon had foreknowledge of his re-election committee's "dirty tricks" campaign against Democratic presidential candidates that led to the break-in, he was aware of it after the fact and paid money to keep the participants quiet.

Former Vice-Presidential adviser I. Lewis "Scooter" Libby was convicted of obstruction of justice in March 2007 for his role in the investigation of a leak to reporters that named a CIA agent, Valerie Plame. His prison sentence was commuted by President George W. Bush in July 2007, so that Libby was no longer required to serve a two and a half year prison sentence, but still required to pay a $250,000 fine, be recorded as a convicted felon, and obey probation terms.

Conrad Black was convicted of obstruction of justice in July 2007[2] for removing 13 boxes containing financial records from his office in Toronto after they had been sealed by a court order, returning the boxes a few days later.

Barry Bonds was convicted of obstruction of justice on April 13, 2011 for his testimony in front of the grand jury during the BALCO steroid scandal.[3] The conviction was later overturned by an appellate court.[4]

In United States v. Binion, malingering or feigning illness during a competency evaluation was held to be obstruction of justice and led to an enhanced sentence.[5]

"Anticipatory obstruction of justice" has recently appeared on the horizon in cases such as US v. Wolff.[6] However, the operative section, 1519, passed in 2002, has thus far languished in quasi-obscurity. Titled “Destruction, Alteration or Falsification of Records in Federal Investigations and Bankruptcy,” the provision was passed under Section 802 of the Sarbanes-Oxley Act of 2002.

The text of the statute is relatively straightforward:

Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsified, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under Title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.

Aside from Section 1519’s 20-year maximum prison sentence (no small benefit to the government in big-dollar fraud loss cases such as Wolff), its primary appeal is that it uniquely removes certain key proof burdens from prosecutors’ collective shoulders.

Prosecutors charging violations of Section 1519 must still establish both of the following:

The accused knowingly directed the obstructive act to affect an issue or matter within the jurisdiction of any U.S. department or agency.

The accused acted at least “in relation to” or “in contemplation’” of such issue or matter.

Not on the list, however, is the requirement that prosecutors demonstrate to the finder of fact which specific “pending proceeding” the accused attempted to obstruct. That is a significant benefit to the government.[7]